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10ML
01-04-2008, 08:57 AM
I know I am going to receive death threats for this one but I need to ask this question. LOL.
You guys were pretty helpful on my last question so I figured I would ask another. Ready?


What are the rules concerning fishing streams like Little River thru private property? As many of you are aware the summer is filled with tubers tubing down the river from the Y in the park all the way down. I know they get way out of hand and sunbathe on people’s property and use the bathroom where ever they like (including in my water supply).

I don’t want to walk across anyone’s property or anything but I was hoping there is some sort of law/rule that says if I am within a few feet of the bank of the river I am ok to follow it down and fish. Is there such a thing? I know TVA says I have 10 feet of bank on Navigable Rivers (I think that is how it is). But on the other hand I have a little creek behind my house and my survey says I own up to the middle of the creek.

I want to access the river thru public pull offs and fish the river several miles up or down the river then come back the same way I went in. I good example of that I am talking about is the Campground just before the park in Townsend. I park at the pull off and cross the river and fish the other side to hit some of the nice pools close to the road. These pools are impossible to hit when you are standing right over top of them so that is why I fish the other side. I always stay in the water but I am ½ expecting someone to yell at me.

Ok. I am ready for my threats of bodily harm now…

Thanks

Fishermansfly
01-04-2008, 09:13 AM
All the fuss you may have heard is in reference to the tubers! The left hand side of the steam facing upriver is where people (home owners) have had all of the problems forcing the tuber businesses in Townsend to require specific pick up points and stricter rules to keep people off of private property. From the dam in Walland I can think of a few people who float that river all the way to around the Rockford area..I can't think of his name but he has a really nice large island created by the Little river! He starts the drop there in Walland and has em' float all day to his house just off of Wildwood Rd. which is pretty close to Rockford School!

Don't think you'd have to many problems! From what I hear floating Rockford's side of the Little river will put you on big smallies all day! Troutman would probably the guy to talk to about the specifics for floating the lower sections of this river, He's a smallie finatic!

When it comes to private property, just keep in mind it isn't yours and I don't think the little river up that high is navigable for purposes of that law! However it does fall into the scenic rivers but not down that low! The law is a funny thing when it comes to all this and I really find myself just scratching my head at it all anywho! A little common sense will get you a long way, while being on private property!

Hope that helps!
~Brett

russ
01-04-2008, 09:15 AM
I think, and I may be completely wrong, but I think the river bed is public and if someone starts yelling at you then just step into the river and move on.

Paula Begley
01-04-2008, 10:22 AM
There is some question regarding this issue, but in Townsend, homeowners own to the center of the river and they can ask you to leave. That said, it's easy to just move on if someone asks you to...nobody owns huge long stretches.

Paula

18inchbrown
01-04-2008, 10:52 AM
The use of waterways by the public is a big debate all over the US. People are buying up land on both sides of flowing creeks and rivers and fencing it in. It is big in PA. with the whole Donny Beaver thing and also out in Montana. I think each locale handles it differently which I believe is not according to the federal law.

There is a law on the Federal record, I believe that says the public has access to any navigable waterway up to the high water mark. You can float a canoe on some very small creeks and a canoe is considered navigation. This law predates most local authority regarding waterways. This is not followed or enforced but the disposition of waterway use is left to whoever has the most money which leads to these pay to fish streams etc.

canerod
01-04-2008, 12:24 PM
The term navigable water has nothing to do with any type of boat or craft in the water. If the water way was used for commercial purposes at any time it is called navigable water. This means if was used to run a mill or float logs etc. this covers almost any water way in the country. That is how it was explained to me how it is in NY and it could be different elsewhere?

Troutman
01-04-2008, 01:38 PM
I've floated the LR several times in my kayak and the only place I have ever had any trouble with the land owners was at the old mill dam in Townsend. I had put in at the park boundary and floated down to the dam hoping to portage around it but the campground would not allow it (to walk 10 feet on their property) and the landowner on the opposite side has signs posted and was onsite. I had to paddle back upstream to the tuber place. (they charge a fee to exit the river on their property)(anything to make a buck) Luckily they were not open yet. I dragged my boat and gear down the side of the road till I could access the river below the dam. I was sweating!
Noone has ever said anything to me while floating and fishing the river. If the landowner is fishing or down at the water, I just say hello and float on downstream. Theres plenty of good water to fish!

I do know a landowner on the LR in Townsend and she told me that when she bought the house and property, that the property lines went to the middle of the river.

The one thing we can all do, is pick up any trash you find along the river. Spring is usually not to bad with trash, but by late summer, it can get frustrating when you find Hardees bags and cups sitting on rocks in the middle of the river. If the landowners see the fishermen as stewards of the river, they are more accepting of us.

mtnman2888
01-04-2008, 02:24 PM
I'm sure all of us, as fly fisherman, have debated this topic before. The way i understand it, and the way i was told, was that if land on both sides of the river were private then you couldn't wade in it. If it is two different land owners then their property line meets in the middle of the stream and they own the land. However, they do not own the water, so you could float or whatever down the river and be legal just as long as you never touched bottom. This is how i understood these rules personally, but to me it's usually been productive just to ask for permission and most of the time they grant it. I would like, however, to hear some "official" word on this matter, would definitely be good to know.

Craig

Jack M.
01-04-2008, 03:20 PM
Some states have special laws, mostly out West. However, in Tennessee, my most educated guess is that the general common law doctrine of public trust prevails. This legal doctrine holds that the streambed of navigable rivers/streams cannot be privately owned, but are held by the sovereign in trust for the benefit of the public. "Navigability" does not mean only streams that were used for modes of transportation or commerce, but applies to streams that could have been so used at the time of statehood. Dams that subsequently destroy or limit present-day navigability do not change ownership of the streambed. If the river is navigable, you can float or wade it. If it is not navigable, then a private entity can own the streambed and prevent wading. Whether one can float through a section of stream where the streambed is privately owned is a matter of dispute. Two other points: if the water is non-navigable, then it doesn't matter if you own land on both sides of the river, because you can still prevent trespass on your half; secondly, if the river is navigable, then regardless of what your Deed may say, the streambed does not belong to you exclusively. Some constructions of the public trust doctrine construe the sovereign's interest as an "easement" others as ownership, but it makes no practical difference to your right to wade.

This is my story and I'm sticking with it. I have no idea whether the Little River is navigable, but I think there is a good chance that it is. Having said all this, I would suggest asking permission where you can and not taking chances angering a landowner. If push comes to shove and you may risk your life trying not to trespass, then trespass and tell tham to sue you. If you portage quickly without harm to the land, it would never be worth it for them to pursue the matter.

Here is a bit more info on the Public Trust Doctrine: http://www.adventuresports.com/river/nors/states/tn-law.htm

Keep in mind this piece is maintained on a website by an organization that advocates public rights in waterways and may be worded optimistically.

One final note: even on navigable waters, the landowner has exclusive rights to land above the normal high-water mark-- there is no right to gain access to a navigable river over private property.

Byron Begley
01-04-2008, 04:48 PM
The Little River is considered navigable by the State of Tennessee. It has a history of commercial use dating back to the logging days and before. Landowners in Townsend have deeds and surveys that show where in the river they own streambed. It is not always in the middle of the stream. A friend of mine bought a lot on the Little River and had it surveyed. Temporary stakes were driven into the streambed to show him where his property lines were located then the stakes were removed. Today the Little River is used for commerce mainly for the tubing business.

This summer a landowner and an angler had a confrontation. The landowner called the police who arrived and told the angler he was trespassing and should leave. The angler was standing on the streambed, not on dry land.

This started a huge debate here in town. Our mayor owns the largest tubing business here. I spent a lot of time talking to him about this situation. Joe Hatton got deeply involved, did a lot of research and still the issue was not completely resolved. Our County Commissioner, John Keeble got involved and asked for an opinion from the Tennessee Department of Environment and Conservation.

TDEC told John Keeble that the angler was in fact trespassing. You can float through on the Little River but not touch the streambed which is is the property of the landowner.

So, at least for now the Townsend Police did the right thing and one should get permission to wade on someone's property.

In reality though, this is the first time I have ever heard of a confrontation between an angler and a landowner in Townsend. Fishing is business here in our town and that means jobs and commerce. My best advice is to enter the river at a place where you are not trespassing or ask permission to enter. I would wade up and down the river without getting out in someone's back yard. If a landowner asks you to leave, tell them you are sorry and move off their property. If you need to portage around the dam stop by the Old Mill Campground and ask permission before you put your boat in the water. I've launched there before without a problem but I asked first if it would be OK.

If this becomes a hot issue and it is pushed to the limit TWRA would have no choice but to stop stocking trout in Townsend. I have talked to TWRA about this issue. That would not impact our business much but many campgrounds and other businesses in this fragile economy would suffer.

The last thing I would want to see at least for now is a test in our court system. I think the anglers would lose and so would Townsend's tourism business.

Byron

Gerry Romer
01-04-2008, 05:47 PM
Very informative and well put, Byron. I seem to recall that River John used to put in float groups (canoe, tube, kayak, etc.) at Docks Motel and supervise them all the way down to the island Brett was referring to - River John's Island.

That's an interesting story in itself. I was under the impression for a long time that a private citizen could not own an island that was situated wholly within the banks of the Little River (btw I have no idea where that idea came from) so I was quite surprised the first time I saw his operation. I dropped my brother and his son off at the dam in Walland one morning a couple years ago and picked them up at his island later that afternoon. If you've never seen it, you'd get a kick out of it. He's got quite a setup there in Rockford.

Gerry

10ML
01-04-2008, 05:49 PM
Byron,

If the landowner owns the streambed that must mean he can do what ever he wants to it right? So...If he wants to remove every rock on his part (because he owns half of the river) and sell them he could? Or better yet replace those rocks with broken glass that would be ok as well? I bet there is some sort of law about that. It wouldn't be littering because it was on his property.

Guys,

I am so glad I asked. I really thought I was the only one in the dark about this. I am sorry about the big stink but I really just wanted to know.

Byron Begley
01-04-2008, 07:12 PM
Good Question 10 ML,

A landowner who owns the river bottom can make changes in a stream as long as he or she gets a permit from TDEC. You can't do anything that will harm the ecosystem and if you do the fines are huge. I remember a fellow who lived on the Piney River in Middle Tennessee decided to dig some gravel out of his stream. If my memory serves me right, and it was about 25 years ago, he was fined $30,000. I know the guys at TDEC well in the Knoxville office. I needed to do some bank stabilization on the spring creek that runs through my land. I got a permit. When our TU chapter worked on the streams that run through Cades Cove to repair damage done by cattle, we had to get a State permit from TDEC for work in the National Park because the Cove is in Tennessee. When we formed the Little River Watershed Association people from TDEC were involved from day one. The people at TDEC have their heart in the right place and care about our watersheds. Problem is, they are understaffed.

Gerry,
River John's is a nice place. I bet you could pull a survey and that island is on his property plat. Some forward thinking counties in Tennessee are removing river bottoms from deeds when they transfer. Over time this could eliminate this problem. Our county is not doing that. Some landowners are requesting that the river bottom be taken out of their deeds. A campground here in Townsend did just that. They are worried about liability issues. But I don't think a landowner can be liable in Tennessee for damages unless there is negligence involved such as running a string of barbed wire across the river.

Byron

Stonefly
01-07-2008, 02:40 PM
Byron -

I remember that case too. I think the guy had to pay a fine, plus pay for remediation. He'd done considerable damage to the stream, had his dozer down in there taking gravel out for whatever purpose.

I also remember seeing some nice trout taken from the Piney back then, in the 16-18 inch range.

sb

Byron Begley
01-07-2008, 06:47 PM
Hey Steve,

Remember when we kept trying to stock brown trout in the Piney using those boxes full of eggs? That was a lot of fun but I don't think it ever worked. Guy McComas made the boxes and Jim Rountree was our leader. I remember the high water would take out our boxes. Do you ever fish the Piney? It is a beautiful stream and it did have rainbows in it. I don't know if they were stocked or wild.

Byron

MarvintheRookie
01-08-2008, 12:25 AM
If the LR is classified "navigable" the constabulary was incorrect.
No trespassing occurred.

"1. Which rivers are owned by the public? The U.S. Supreme Court has held that the bed and banks under all rivers, lakes, and streams that are navigable, for title purposes, are owned by the states, held in trust for the public. Title in this context means ownership. This public-trust ownership extends up to the ordinary high water line, (or ordinary high water mark,) encompassing what is commonly referred to as the submerged and submersible land, as opposed to the upland. This type of navigability is called title navigability...."


http://www.adventuresports.com/river/nors/us-law-who-owns.htm (http://www.adventuresports.com/river/nors/us-law-who-owns.htm)

Byron Begley
01-08-2008, 03:05 PM
Here's another twist,

I have talked to two people in the last couple of days about this issue. One of them was the son of a former Mayor of Townsend and a landowner on the Little River. The other is Joe Hatton who has done extensive research on the subject. If the owner's deed refers to the boundary as being in the center of the river they can't stop you from wading. Why? Because the middle of the river changes, it is not a defined line. Evidently some of the Townsend Deeds define the boundary to be the center of the river. Joe Hatton found some more information that is interesting. If a landowner owns a dam they cannot stop people from portaging around that dam on their property. Further, if that landowner is challenged in court they could face the possibility of paying to have the dam removed. I bet the cost of removing the dam in Townsend would cost more than the property is worth. I am referring to the people who stopped Troutman from portaging around the dam.

Byron

monktrout
01-08-2008, 05:01 PM
Byron, That would make sense about the dam. If you own a dam that has impeded stream flow or navigation you would have to allow portage around the dam. I have also read that a navigable river is one that was used for commerce. Floating beaver pelts down river in a canoe in the 1700's would qualify. However, these cases could be difficult to defend in court. Some who would close off access have deep pockets and influence. A corporation trying to privatize a large section of a river would have considerable assets to invest in litigation. But there are some places too beautiful and too wonderful for any one person to own. Some things belong to us all.

Stonefly
01-08-2008, 06:52 PM
I remember that well. We tried several years, and every year high water took our boxes. I seem to recall that someone did find some small browns once, that would have been the result of our efforts. I haven't seen Doc in quite a while, think he's mainly fishing salt-water these days. He'd be the one to know if I'm remembering too well, i.e., my memory is sometimes so good I can remember stuff that never even happened. 8>) Would be nice to hear that they caught on, but I pretty much doubt that happened.

I haven't fished the Piney is 20+ years. Even back then, we tried to improve it, but few of us fished it much -- not even Doc and he lived very near to it.

sb



Hey Steve,

Remember when we kept trying to stock brown trout in the Piney using those boxes full of eggs? That was a lot of fun but I don't think it ever worked. Guy McComas made the boxes and Jim Rountree was our leader. I remember the high water would take out our boxes. Do you ever fish the Piney? It is a beautiful stream and it did have rainbows in it. I don't know if they were stocked or wild.

Byron